State v. Bell

• Decision Date: 31 December 2001
• Docket Number: No. 23909.,23909.
• Citation: 66 S.W.3d 157
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael BELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

66 S.W.3d 157

STATE of Missouri, Plaintiff-Respondent, v. Michael BELL, Defendant-Appellant.

No. 23909.

Missouri Court of Appeals, Southern District, Division Two.

December 31, 2001.

Motion for Rehearing and Transfer Denied January 18, 2002.

Application for Transfer Denied February 26, 2002.

Nancy L. Vincent, Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Asst. Attorney General, Jefferson City, for respondent.

KENNETH W. SHRUM, Judge.

Michael Bell ("Defendant") appeals his jury conviction for first-degree robbery (§ 560.020), for which he was sentenced to fifteen years' imprisonment.¹ In four points relied on, Defendant charges the trial court committed reversible error when it refused to (1) dismiss the charges because of the State's delay in filing them, (2) give Defendant relief on his speedy trial request, (3) grant a mistrial when a witness alluded to Defendant's prior bad conduct or involvement in other crimes, and (4) allow evidence about why the State dismissed charges against another participant in the subject crimes. For the reasons outlined below, all points are denied and the judgment affirmed.

FACTS

Shortly after midnight on June 6, 1998, Kellett's Oil, a gas station in Sikeston, Missouri, was robbed and the clerk working there was shot and subsequently died. Based primarily on information provided by Michael Hatcher ("Hatcher"), who admitted to taking part in the robbery, the State ultimately charged Defendant on November 24, 1999, with the following crimes: Murder in the first degree (§ 565.020), armed criminal action (§ 571.015), and robbery in the first degree (§ 569.020).

Summarized, Hatcher's at-trial testimony about Defendant's involvement was that near midnight on June 5, 1998, Defendant, Hatcher, Orlandis Farr ("Farr"), and Darius Nicholson ("Nicholson") agreed to rob Kellett's Oil. Hatcher, who was driving, parked in an alley. The four persons then donned caps and bandanas to cover their faces and walked to the gas station to carry out their planned robbery. During the robbery, Hatcher heard a gun shot and when he looked back, he saw Defendant and Nicholson running from the station. Hatcher also saw that the clerk had been shot and was lying on the floor. As the four robbery participants fled, they discarded their caps and bandanas.

Details about the investigative efforts of law enforcement officials and how they learned Defendant was implicated, included the following. At or near the scene, officers located a set of tire tracks, a blue bandana, a handgun, and ball caps in an alley. Also, a red bandana and a white t-shirt were found on a nearby street. It was learned that the bullet that killed the clerk came from the handgun found in the alley. Then in July 1998, police officers talked with suspects being held in Cape Girardeau concerning a robbery similar to that at Kellett's Oil. They gave officers information that led them to Hatcher and Nicholson.

When officers first talked to Hatcher, he denied involvement, but based on the information from the Cape Girardeau suspects, Hatcher was arrested and his automobile was seized. It was later learned that the tread pattern on at least one tire of Hatcher's car matched that taken from the tire tracks in the alley. Confronted with the tire evidence, Hatcher finally conceded he was in the vehicle the night of the robbery, but claimed he did not participate. Later, Hatcher told officers he would talk and identify the shooter if the prosecutor would give him a "deal" for ten years. After receiving an indication that he might receive that deal from the prosecutor, Hatcher told detectives that he, Nicholson, and "some guy from Malden" (who Hatcher was later able to identify as Farr from a high school yearbook picture) were involved in the robbery and murder. It was not until September 15, 1998, that Hatcher identified Defendant as one of the participants. His at-trial explanation for the delay was that he knew Defendant better than Farr and considered Defendant a friend and therefore was hesitant to name Defendant as a participant.

By his own admission, Hatcher had some difficulty telling the truth or relaying a complete story to investigators. During interviews with detectives and while testifying at his deposition and at preliminary hearings for Nicholson and Defendant, Hatcher lied or gave inconsistent statements about his realization that the others intended to commit the robbery, his level of involvement in the robbery, from where he obtained his bandana and who was wearing a bandana, his knowledge of Nicholson having a gun, and his whereabouts on that evening. In a letter he wrote the prosecutor from jail, Hatcher promised he would "do a better job testifying" and that he could "guarantee" a "definite conviction" if the prosecutor would promise him a "120 shock period" (referencing sentencing pursuant to § 559.115).

On November 24, 1999, the State charged Defendant, Farr, and Nicholson each with one count of murder in the first degree, armed criminal action, and robbery in the first degree.² The State pursued the armed criminal action and robbery in the first degree charges against Defendant and Farr as co-defendants, but elected to proceed against them on a murder in the second degree charge instead of murder in the first degree. The trial was held August 15-18, 2000. The jury acquitted Defendant and Farr of the murder in the second degree and armed criminal action charges, but convicted both of them on the robbery in the first degree charge. This appeal followed.

DISCUSSION

POINT I: DELAY IN FILING INFORMATION

Defendant's first point maintains the trial court erred when it refused to grant his motion to dismiss the information because of the State's delay in filing the charges. Defendant claims the State had learned from Hatcher that Defendant was allegedly involved in the robbery and murder as early as September 1998, but failed to charge Defendant with any crime until November 24, 1999. Defendant further claims that he was prejudiced by the delay because he was unable to establish an alibi defense due to the passage of time, unavailability of a witness, and dimming of memories.

A delay in filing an information or procuring an indictment may violate a defendant's constitutional due process rights. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). However, it is not the length of the delay that is dispositive, but whether the accused suffered substantial prejudice due to the delay. Id. at 325. A short delay may be prejudicial in some circumstances whereas in others a long delay may not prove to be detrimental to an accused's constitutional rights. Id.

In considering if a delay in filing an information infringes on an accused's constitutional rights, the issue "is not whether [the] delay should have happened but rather whether [the] delay justifies the dismissal of charges against the [accused] under the due process clause of the Fifth and Fourteenth Amendments." State v. Griffin, 848 S.W.2d 464, 467[2] (Mo.banc 1993). "[T]he test for determining whether... delay [in filing an information] requires the dismissal of charges is whether 1) the defendant was prejudiced by ... [the] delay which 2) was intended by the prosecution to gain a tactical advantage over the defendant." Id.

Before an information will be dismissed because of delay in its filing, Defendant must show both elements of the above test. State v. Palmer, 726 S.W.2d 447, 448 (Mo.App.1987). The "inquiry must consider the reasons for the delay as well as the prejudice to the accused." United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Delay in filing an information "is prejudicial if it impairs the defendant's ability to defend himself." State v. Clark, 859 S.W.2d 782, 786[2] (Mo.App.1993).

Here, Defendant claims that prejudice to him of constitutional dimension resulted from the delay in filing of charges because he and the people he was with during the early morning of June 6, 1998, "were simply unable to recall" the events of an "ordinary day 18 months prior" to his arrest. In his only illustration, Defendant claims "his then-girlfriend moved to Atlanta during the time between the robbery and the filing of charges and was unavailable as a witness." Continuing, Defendant insists he "was prejudiced by the delay and ... resultant inability to present an alibi defense because had he been able to do so, the jury would have had something to compare to Hatcher's story and a reason to disbelieve it." He says the record is "clear that Hatcher was completely incapable of telling the same story twice[;]" that Hatcher "admitted to over twenty outright lies, `misunderstandings[,]' failures to tell the `whole truth[,]' and a `not for real' lie." With that assertion made, Defendant concludes his prejudice argument by saying, "[i]t was ... clear that the only evidence the state had to connect [Defendant] to the robbery was Hatcher's testimony. If [Defendant] had been able to establish his whereabouts, the jury would have discounted Hatcher's story and acquitted [Defendant]."

Initially, we note that the prejudice Defendant must show to prevail on his first point has to be more than the real prospect of prejudice that normally attends any extended delay in criminal proceedings, i.e., that memories will dim, witnesses will become inaccessible, and evidence will be lost. Clark, 859 S.W.2d at 786. To have any chance of success, Defendant "must do more than speculate; he must indicate the nature of possible evidence which could be adduced." Id. Defendant has not met that burden here. Although he claims his former girlfriend had moved to Atlanta and was unavailable as a witness, he offers no clue as to why she was unavailable or what her testimony might have been. Lack of presence in the jurisdiction does not make a witness unavailable. State v. Robinson...